Here‘s the Legal Information Institute’s preview of tomorrow’s U.S. Supreme Court arguments in Koontz v. St Johns River Water Mgmt Dist., No. 11-1447 (cert. granted Oct. 5, 2012). That’s the case in which the Court will be addressing whether the “essential nexus” and “rough proportionality” standards of Nollan and Dolan are applicable only to exactions for land, or whether they are generally-applicable tests for all exactions.
Disclosure: we filed an amicus brief in the case in support of the property owner/petitioner. The property owner’s brief on the merits is available here. The other amicus briefs supporting the property owner are available here, here, and here. The Water Management District’s merits brief is posted here. The amicus briefs suporting the Water District are posted here. The property owner’s reply brief is here.
The LII’s preview has a good “he said she said” account of the case and the arguments, and concludes with this:
The Supreme Court’s ruling in this case will decide whether the constitutional standard set out in Nollan and Dolan apply so that the government can be held liable for an improper taking when the government refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a condition to dedicate money, services, labor, or any other type of personal property to a public use. If the Court adopts Koontz’s position, the standards will apply to cases where the government refused to issue a land use permit and to cases involving non-real property exactions. Koontz believes that these standards will protect landowners and developers from government corruption without hindering the government’s decision-making process. If the Court adopts St. Johns’ position, the standards will not apply to this case or similar cases but will continue to apply to cases where the government actually took real property from the landowner. St. Johns believes that these standards are not necessary because there are other safeguards in place to protect landowners and developers from government corruption and instead, these standards would be a detriment to the government and every community. The Supreme Court should consider Environmental Law concerns while making this decision.
As to the quote in the headline of this post, the preview starts with this:
Koontz argues that the constitutional standards set out in Nollan and Dolan should apply to this case and similar cases so that the government can be held liable for improper taking when the government refuses to issue a land-use permit on the sole basis that the permit applicant did not accede to a financial or public service condition. St. Johns River Water Management District argues that the constitutional standards set out in Nollan and Dolan should not apply to this case and similar cases where the government did not actually take any property from the landowner. This decision has the potential to drastically modify takings jurisprudence with regard to exactions.
While yes, the case has the potential to “drastically modify” takings law, as our brief pointed out, it’s not necessary for the Court to do so in order to reverse the Florida Supreme Court’s decision. Several state jurisdictions (California and Texas, for example) already apply the nexus and rough proportionality requirements to all exactions. As these and other examples show, the sky will not fall should the Supreme Court apply what are relatively modest transparency requirements to the entire exaction process, and not artificially limit the test to demands for land. Nollan and Dolan do not prohibit exactions, they merely require the government to explain why an exaction is related to the use approval the property owner seeks.
To entertain yourself while we await for the release of tomorrow’s transcript, revisit the recording of the oral arguments in Nollan, posted here. Listening to it, it struck us as how little the government’s argument has changed in 27 years. Reading the Koontz briefs, it struck us as how little the government’s argument changed in reaction to Nollan.
More, after tomorrow’s oral arguments.